Employer’s Treatment Of Harassed Employee Comes With A Heavy Price

November 29, 2018

When at work, it’s fair to say that employees should expect to be able to work in an environment free of harassment. If harassment does occur, employees should feel safe in being able to report it to the employer. But of course, things don’t always go as they should. As a recent decision from the Ontario Superior Court of Justice demonstrates, enabling harassment in the workplace can be a costly mistake for employers.

Circumstances leading to termination

The employee testified that she began to be harassed by a co-worker shortly after being hired by the employer. She stated the co-worker belittled her and was rude to her both in private and in front of others. It culminated in an incident in December 2016 when she said the co-worker elbowed her in a hallway and told her to “take a pill” when she confronted him about it.

Two days later the same co-worker prevented her from opening a drawer, repeatedly blocking her attempts, saying “can you not wait?” When the employee told her supervisor about the incident and that she thought she should go home, the supervisor responded by saluting her and saying “goodbye.”

The lack of support from her supervisor led her to complain to the owner of the company. She explained what happened to the owner during a December 22, 2016 meeting, adding that she needed some “time away.” She was being treated for depression at the time, though she can’t recall if the owner was aware. Business was slow, and the employee asked the employer if she could be laid off. He told her it was not possible at the time, but encouraged her to take the last day off of the year and they would “figure this out in the new year.” As she was leaving the employer asked her, “If he laid her off, and if the employee that she was having a problem with was not present, would she come back?” She responded in the affirmative.

On December 28, 2016, the employee received a termination letter dated December 22. The letter, which was taped to her door and signed by the owner, read:

This is to inform you that your employment with (the employer) has been terminated on 22 December, 2016.

Your position is been terminated with cause as result of your conduct. On December 22, 2016, you were at the retail counter and wanted access to a drawer that your fellow employee… was standing in front of. You lost your temper and angrily ranted against… while he was serving the customer. You have reacted in this unprofessional manner on other occasions and have been reprimanded for it. I cannot and will not condone this type of behaviour.

Statutory law does not require an employer to provide any notice or paying in lieu of notice when employee is terminated with cause.

If you have any questions or concerns regarding the above, please do not hesitate to contact me.

The fallout

The employee testified that she was devastated by the news, saying it put her into a “good deep hole” that she is “still struggling to climb out of.” In January 2017 she was diagnosed with acute depression. She also started counseling at the advice of her family doctor. At trial, she testified she had lost 30 pounds, had difficulty sleeping, and was suffering from serious anxiety, leaving her unable to work.

In addition to her medical woes, the employee was also denied employment insurance because the employer maintained she was terminated for cause.

She made a claim against the employer for damages arising from her dismissal and from her employment with the employer. The employer chose not to defend itself at the hearing.

The court’s decision

The court found that while the employer was not vicariously liable for the actions of the co-worker, it was wrong in how it dealt with the complaint. The court wrote,

“I am satisfied on the evidence that the plaintiff was harassed in the workplace and that the employer, rather than investigating, terminated the plaintiff. As such, I find that the employer’s conduct was malicious, oppressive and high-handed and must be deterred. Punitive damages are awarded only where compensatory damages are insufficient to deter. In this case, compensatory damages awarded were $10,000 for wrongful dismissal. I have also awarded aggravated damages of $20,000. In my opinion, these awards are insufficient to deter this conduct. I award $10,000 as punitive damages.”

In addition, the court also awarded damages for the manner in which the employee was terminated, writing,

“In this case, rather than “figuring this out in the new year” as he told the plaintiff he would, the employer immediately terminated the plaintiff’s employment without further discussion and delivered a termination letter during the Christmas holidays by sticking a letter in the back door. The manner of the termination was beyond “cold and brusque”; it was cowardly. The aftermath of the termination for the plaintiff has been discussed earlier.

“I am satisfied that the manner of termination did cause an aggravation of the plaintiff’s pre-existing depression and that this is an appropriate case for aggravated or “moral” damages. I award the plaintiff the sum of $20,000 for aggravated damages.”

The employment law team at HMC Lawyers offers employment law and risk management to both employers and employees. Our team has over 130 years of cumulative experience, advocating for corporate and individual clients. We understand the emotional stress that can come with a wrongful termination, and work with our clients to achieve a quick, affordable outcome in their best interests. We also help employers draft contracts and make decisions designed to avoid litigation and claims for unfair treatment. Please call us at 1-800-480-3534 or reach us online today.

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